Andrew Ryan, a planning and environment partner in the energy and renewables team at TLT in Belfast (pictured), writes on changes to judicial reviews which took effect this month.
From 8 January 2018 the requirement to be prompt in starting judicial review proceedings – including those challenging planning decisions – has been removed.
This means that provided a judicial review (“JR”) application is brought within the three months, there is no risk of the application being refused at the first hurdle on grounds of delay. Many planning challenges had failed in the past because of delay, but this will no longer be the case.
In Northern Ireland the time limit for judicial review was three months from the date at which the decision being challenged was made. This period was also subject to a requirement for “promptitude”; the further into the three-month period a potential applicant waited before lodging the proceedings, the greater the risk that a court would refuse the application for inexcusable delay.
The implications of this change are potentially significant. For JR applicants the pressure to lodge proceedings quickly has gone, but for the decision maker and any affected third party the potential to get an application struck out for “culpable delay” – sometimes a helpful route to an early end for proceedings – has also gone.
Implications for developers
For property developers in particular it will now be necessary to wait for the JR period to lapse if there is any risk of a challenge on the horizon. Whilst arguably it was always sensible to wait three months in any event, no doubt challengers will wait until the 90 day period is almost up to lodge proceedings as a tactical measure to increase delay – often the enemy of a developer and its investors. Developers will now have no ability to claim that the delay has prejudiced their valuable planning consent.
The Rules of the Court of Judicature (NI) (Amendment) 2017 came into force on 8 January 2018. These amended Order 53 rule 4(1) of the Rules of the Court of Judicature (NI) 1980. Order 53 – seared into the minds of any legal practitioner of judicial review – stated that an application for leave to apply for judicial review must be brought “promptly and in any event within three months from the date when the grounds for the application first arose“.
The word “promptly” has presented significant difficulties and confusion in recent years, particularly in the sphere of planning and environmental judicial review. Whilst there was no hard and fast rule, as a general principle legal practitioners would start to get concerned if an application was lodged beyond six weeks from the date of the decision at issue unless there was a good excuse for the delay.
Certainly if a challenge was brought within the last couple of weeks (or as was often the case) on the last day of the three month period, the likelihood of the application being refused was greatly increased.
Why the change?
In recent years in particular the High court in NI had become more inclined to refuse a JR application on the basis of delay. This in part was recognising the need for “great expedition” in planning/development cases where a valuable consent was at stage, but also perhaps a reflection on the proliferation of JR challenges and the need to move matters on quickly in a crowded High Court.
The issue of delay was made more complex by challenges incorporating European law issues. Following the ruling of the European Court in Uniplex(C-406/08) it was held that the requirement for promptitude was not consistent with the need under EU law for precision, clarity and foreseeability. Although a procurement case, the Uniplex decision crossed over into EU environmental law such that if grounds of challenge were raised, for example under the Habitats or Environmental Impact Assessment Directives, the court was unable to refuse a JR application on those grounds. This could lead to an application being part refused on “domestic” grounds (e.g. misinterpretation of planning policy) but proceeding on any EU law grounds.
In light of this potential confusion and uncertainty, the NI Law Commission undertook a consultation in 2015 proposing that for the sake of consistency and predictability the requirement for promptitude should dropped. Those changes were finally made in early 2018.
What should be done differently?
The removal of the requirement for promptitude is significant. For developers a legal advisor would always recommend that no development should commence until the three month period lapsed and this would often be built into development agreements. Where previously a developer might be able to argue prejudice if a planning permission was commenced earlier, that risk cannot now be taken if there is any hint of a potential challenge (e.g. through objections during the planning application process). For objectors often meeting the promptness requirement was difficult, particularly for individuals or residents’ groups if there were difficulties in raising funds or even corralling the required legal and technical experts that might be needed to bring a robust challenge. In some cases the court would be sympathetic to this, but refusal of leave due to delay was always a risk. Certainly commercial objectors were expected to act quickly.
This does not mean that a potential JR applicant should sit on their hands once a decision has been issued. Compiling the necessary documents and evidence for a JR can be a long and complex process and both legal advisors and consultants will benefit from as much time as possible to collate and refine a JR application before it is lodged. Even with the former requirement for promptness, mounting a robust challenge within three months could be a significant challenge.
If a JR applicant has the means to bring a challenge quickly, there might now be good tactical reasons for waiting to the last minute. Timescales for developer funding can be extremely tight and any delay could result in development opportunities being lost. Given that a complex judicial review could take six to twelve months to play out in the court (even longer on appeal), an initial hiatus of three months adds further significant delay even before any court timetable can be set. Developers must be prepared for this; if a planning application is generating significant objections not only must the application be as robust as possible, but contingencies must be put in place for judicial review and this must include an appreciation of likely delays if a challenge is brought.
Time will tell how this change will play out in the courts, however the trend for JR applicants no doubt will be to play the longer game. In the planning and environment realm, with the exception of challenges that are seeking to prevent immediate and ongoing environmental harm where time is of the essence, expect little to happen until the 89th day.
Article originally appeared on Irish Legal News
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